As noted earlier in the introduction, employers that do offer domestic partner benefits do not always extend these benefits to both homosexual and heterosexual unmarried partners. Some employers offer these benefits to homosexual couples only. These employers believe that heterosexual couples have the option of marriage, whereas, gay and lesbian couples do not.325 Depending on state law and
whether the government is the employer, this reasoning leaves open the possibility of an equal protection challenge.
An unmarried heterosexual couple, who has been denied benefits where benefits are offered to homosexual couples, may attempt to argue an equal protection violation based on gender discrimination. The argument may be based on the fact that both the opposite- and same-sex couple are unmarried, and the only reason for the denial of benefits to the opposite-sex couple is the fact that one of the partners in the relationship is of a different gender than the other. If such an argument could be made successfully, the court may use an intermediate standard of review when
319
Id. See also Tumeo, 1995 WL 238359, at *6, *8.
320University of Ala., 933 P.2d at 1149; see also Tumeo, 1995 WL 238359, at *6. 321University of Ala., 933 P.2d at 1150.
322Id. at 1152. 323Id.
324Tumeo, 1995 WL 238359, at *9.
325Alastair Goldfisher, Who Are Domestic Partners?, B
US.J., Aug. 21, 1995, available in
1995 WL 12104753; see also Rachel Gordon, Katz Eyes Partners Laws for Gays Only, Asks City Attorney for Opinion on Excluding Straights; Such a Change Would Face Fierce Fight, SAN FRANCISCO EXAMINER, May 16, 1997, available in 1997 WL 4339648 (discussion of San Francisco's ordinance and impact on companies doing business with the city which offer benefits to same sex partners only); see also Hodges, supra note 13.
making its decision. Intermediate analysis is generally associated with cases involving gender discrimination.326
The intermediate standard of review is not as difficult for the government to meet as the strict scrutiny standard of review which requires a compelling state interest in order for the government to prevail.327 In addition, the intermediate standard
involves far less deference to the legislature as does the rational basis test.328 Under
the intermediate standard, a classification will not be upheld unless it is found that such classification has a "substantial relationship" to an "important" government interest.329
Therefore, when arguing gender discrimination based on the fact you are an unmarried heterosexual couple as opposed to a homosexual couple, it must be shown that the law or policy is not substantially related to an important governmental interest. The government may argue that they have an important interest in the preservation of marriage and the maintenance of family; however, they may be contradicting this argument by offering privileges to some unmarried couples— homosexuals—while excluding non-married heterosexual couples.
Another way a non-married heterosexual couple may bring an equal protection challenge is by alleging discrimination on the basis of sexual orientation. In 1997, in the City of Milwaukee, the City Attorney's office issued a legal opinion which stated that any domestic partner benefit proposal must include heterosexuals as well as homosexuals.330 According to the opinion, failure to include heterosexuals would
discriminate on the basis of sexual orientation.331 In addition, the City of Oakland
may face a court challenge to its domestic partner law based on sexual orientation discrimination because it extends benefits to homosexual couples and not unmarried heterosexual couples.332 If such a challenge prevails, other employers offering
domestic partner benefits to same-sex couples only may face similar challenges. Although some have argued for strict scrutiny review in sexual orientation discrimination cases, the basis of review is likely to be rational basis review.333
Under the rational basis test, "the classification only has to have a rational relationship to any legitimate governmental interest in order to comply with the
326O'Brien,
supra note 66, at 190-91.
327J
OHN E.NOWAK &RONALD D.ROTUNDA, CONSTITUTIONAL LAW § 14.3 at 576 (4th ed. 1991) [hereinafter NOWAK &ROTUNDA]; see also O'Brien, supra note 66, at 190-91 (strict scrutiny analysis is generally associated with racial discrimination claims).
328NOWAK &ROTUNDA, supra note 327, §14.3 at 576. 329Id.
330Bill Meunier, Domestic Partnership Proposal Amended, WIS.LIGHT (visited,Sept. 14,
1997) <http://www.wilight.com/archives/09-14-97/page4.html>.
331Id.
332Pamela Burdman, Oakland Faces Legal Fight over Partner Benefits/State Agency Says
Policy Favors Same-Sex Couples, SAN FRANCISCO CHRON., Dec. 3, 1997, available in 1997 WL 6712250; see also Oakland's Same-Sex Benefits Sparks Suit State Agency Wants All Couples Covered, SACRAMENTO BEE, Dec. 3, 1997, available in 1997 WL 15807761.
333O'Brien,
equal protection guarantee."334 The court will uphold a classification under this
standard "unless no reasonably conceivable set of facts could establish a rational relationship between the classification and an arguably legitimate end of government."335
The employee will have to prove that the law or policy has no rational relationship to a legitimate end of government. The government or employer may argue that the preservation of marriage and family is a legitimate end and that not extending benefits to unmarried heterosexual couples is rationally related to that purpose. However, as noted earlier, the government or employer may be contradicting themselves because they are offering benefits to some married employees but not to others. The employee may argue that his or her sexual orientation—heterosexual—is the only basis for denial of such benefits.
The employer or government may be able to argue that unmarried heterosexuals and homosexuals are not similarly situated because heterosexual couples have the option to marry while homosexual couples do not.336 However, marriage may not be
the best option for all heterosexual partners in need of insurance benefits. Although a non-married couple may be as committed to one another as that of a married couple, religious beliefs or financial reasons, such as loss of government benefits, may preclude such a couple from marrying.
In addition, the government may attempt to argue that married couples and homosexual couples are similarly situated in every way except that which is prohibited to them.337 However, it is difficult to determine whether such an argument
will prevail. In cases such as Hinman, discussed supra, the court ruled that homosexuals were not similarly situated to married couples.338 However, other
courts such as that in University of Alaska, discussed supra, found that such distinction constituted marital status discrimination.339